AB1076: Bill Text

AB1076,13,5 254.92 (4) Penalties. (a) 1. In this paragraph, "violation" means a violation of sub. (2) (1) (a), (c), (cg), (cm), (d) or (e) or of a local ordinance which strictly conforms to sub. (2) (a), (c), (cm), (d) or (e) that is enacted in compliance with sub. (5).

AB1076,13,13 2. A person who commits The following forfeitures apply to a retailer for a violation is subject to a forfeiture of sub. (1) (a), (c), (cg), (cm) or (e) by the retailer or the agent or employe of the retailer, apply to a manufacturer for a violation of sub. (1) (a) by the manufacturer or the agent or employe of the manufacturer, apply to a distributor for a violation of sub. (1) (a) by the distributor or the agent or employe of the distributor, apply to a jobber for a violation of sub. (1) (a) by the jobber or the agent or employe of the jobber and apply to a subjobber for a violation of sub. (1) (a) by the subjobber or the agent or employe of the subjobber:

AB1076,13,16 a. Not more than $500 if the person retailer, manufacturer, distributor, jobber or subjobber has not committed a previous violation within 12 24 months of the violation; or

AB1076,13,19 b. Not less than $200 nor more than $500 if the person retailer, manufacturer, distributor, jobber or subjobber has committed a previous violation within 12 24 months of the violation.

AB1076,13,23 3. A court The department or a local health department that is designated as the department's agent under s. 254.916, that issued a license under s. 254.914 shall suspend any license or permit issued under s. 134.65, 139.34 or 139.79 to a person retailer for:

AB1076,14,3 a. Not more than 3 days, if the court department or local health department finds that the person retailer committed a violation within 12 24 months after committing one previous violation;

AB1076,14,6 b. Not less than 3 days nor more than 10 days, if the court department or local health department finds that the person retailer committed a violation within 12 24 months after committing 2 other violations; or

AB1076,14,9 c. Not less than 15 days nor more than 30 days, if the court department or local health department finds that the person retailer committed a violation within 12 24 months after committing 3 or more other violations.

AB1076,14,16 4. The court If the department suspends a license under subd. 3., the department shall promptly mail notice of a the suspension under subd. 3. to the local health department of revenue and to the clerk of each municipality which has issued a license or permit to the person that is designated as the department's agent under s. 254.916 whose jurisdiction, if so designated, includes the retailer. If the local health department suspends a license under subd. 3., the local health department shall promptly mail notice of the suspension to the department.

AB1076,14,17 (b) Whoever violates sub. (2) (1) (b) shall forfeit not more than $25.

AB1076, s. 44 Section 44. 134.66 (5) of the statutes is renumbered 254.92 (5) and amended to read:

AB1076,15,5 254.92 (5) Local ordinance. A county, town, village or city may adopt enact an ordinance regulating the conduct regulated by this section only if it strictly conforms to this section. Such an ordinance shall provide for civil forfeitures that are for the same amounts as the forfeitures that may be imposed by the department under sub. (4) (a) 2. and shall require a court to act in place of the department under sub. (4) or, if applicable, a local health department under sub. (4) (a) 3. and to notify the department and, if applicable, the local health department of the court action. Under such an ordinance, only one charge may result from each violation of this section. A county ordinance adopted enacted under this subsection does not apply within any town, village or city that has adopted or adopts enacted or enacts an ordinance under this subsection.

AB1076, s. 45 Section 45. 139.08 (3) of the statutes is amended to read:

AB1076,15,9 139.08 (3) Police powers. The department of revenue shall enforce and the duly authorized employes of the department shall have all necessary police powers to prevent violations of s. 134.65, this subchapter and ch. 125.

AB1076, s. 46 Section 46. 139.30 (14) of the statutes is amended to read:

AB1076,15,13 139.30 (14) "Vending machine" is any mechanical device which that automatically dispenses cigarettes upon the deposit therein of specified coins when money or tokens are deposited in the device in payment for such the cigarettes.

AB1076, s. 47 Section 47. 139.34 (1) (c) 8. of the statutes is created to read:

AB1076,15,17 139.34 (1) (c) 8. The holder of a permit under ss. 139.30 to 139.41 or 139.79 or the person has been found at least 6 times under s. 254.914 (7) to have violated s. 254.914.

AB1076, s. 48 Section 48. 139.39 (1) of the statutes is amended to read:

AB1076,15,21 139.39 (1) The department shall administer and enforce ss. 139.30 to 139.44, and 139.75 to 139.85 and 134.65. The department shall adopt promulgate rules necessary to administer and enforce its duties.

AB1076, s. 49 Section 49. 139.39 (5) (a) of the statutes is amended to read:

AB1076,16,3 139.39 (5) (a) Any person may be compelled to testify in regard to any violation of ss. 134.65 and 139.30 to 139.44 of which the person may have knowledge, even though such testimony may tend to incriminate the person, upon being granted immunity from prosecution in connection therewith, and upon the giving of such testimony, the person shall not be prosecuted because of the violation relative to which the person has testified.

AB1076, s. 50 Section 50. 251.04 (1) of the statutes is amended to read:

AB1076,16,13 251.04 (1) A city or county board of health shall govern each local health department and assure the enforcement of state public health statutes and public health rules of the department as prescribed for a Level I local health department. A local board of health may contract or subcontract to provide public health services, except that this power does not extend to the authorized actions under subch. IX of ch. 254, other than under s. 254.916 (2), of a local health department that is designated as the department's agent under s. 254.916 (1). The contractor's staff shall meet the appropriate qualifications for positions in a Level I local health department.

AB1076, s. 51 Section 51. Subchapter IX (title) of chapter 254 [precedes 254.911] of the statutes is created to read:

AB1076,16,16 Chapter 254

AB1076,16,19 Subchapter IX Restrictions on sale or gift of Cigarettes or tobacco products

AB1076, s. 52 Section 52. 254.911 (5), (11) and (13) to (15) of the statutes are created to read:

AB1076,16,22 254.911 (5) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

AB1076,16,23 (11) "Tavern" has the meaning given in s. 941.237 (1) (fm).

AB1076,17,3 (13) "Tobacco vending machine" is any mechanical device that automatically dispenses cigarettes or tobacco products when money or tokens are deposited in the device in payment for the cigarettes or tobacco products.

AB1076,17,8 (14) "Tobacco vending machine operator" means a person who acquires tobacco products or stamped cigarettes from manufacturers or permittees, stores them and sells them through the medium of tobacco vending machines that he or she owns, operates or services and that are located on premises that are owned or under the control of other persons.

AB1076,17,10 (15) "Tobacco vending machine premises" includes the room or area in which a tobacco vending machine is located.

AB1076, s. 53 Section 53. 254.914 (1m), (1r) and (2) of the statutes are created to read:

AB1076,17,21 254.914 (1m) A retailer or the retailer's employe or agent may not sell, expose for sale, exchange, barter or dispose of any cigarettes, and may not sell, expose for sale, exchange, barter, dispose of or give away any tobacco products, other than cigars, to anyone who is not licensed under this section or who does not hold a permit under ss. 139.30 to 139.41 or 139.79 unless the sale, exposure, exchange, bartering, disposing or gift occurs on the premises described in the license and unless both the retailer or the retailer's employe or agent and the buyer, exchanger, barterer, donee or other receiver of the cigarettes or tobacco products, other than cigars, are physically present on the premises during the sale, exposure, exchange, bartering, disposing or gifting.

AB1076,17,23 (1r) A person licensed under this section may not give away any cigarettes to anyone.

AB1076,18,5 (2) An applicant for a license under this section shall complete the application prepared by the department and provide, in writing, any additional information that the department requires, including the applicant's signature to a statement, provided by the department, that indicates that the applicant has knowledge of the laws governing sales and gifting of cigarettes or tobacco products. The department shall also provide the applicant with information on ways to prevent cigarette or tobacco products sales to minors.

AB1076, s. 54 Section 54. 254.914 (5) of the statutes is created to read:

AB1076,18,8 254.914 (5) Upon request, the department shall provide a current list of persons or establishments that are licensed under this section.

AB1076, s. 55 Section 55. 254.914 (8) of the statutes is created to read:

AB1076,18,14 254.914 (8) If the department imposes a forfeiture on or revokes the license of a person under sub. (7), the department shall promptly mail notice of the forfeiture imposition or license revocation to the department of revenue and to the local health department that is designated as the department's agent under s. 254.916 whose jurisdiction, if so designated, includes the retailer.

AB1076, s. 56 Section 56. 254.916 of the statutes is created to read:

AB1076,19,5 254.916 Agent status for local health departments. (1) In the administration of this subchapter, the department may enter into a written agreement with a local health department with a jurisdictional area that has a population of more than 5,000, which designates the local health department as the department's agent in issuing or, if applicable, suspending licenses under s. 254.914 and making investigations, in cooperation with local law enforcement authorities, or inspections of retailers, tobacco vending machine operators, tobacco vending machine premises and tobacco vending machines. In a jurisdictional area of a local health department that is not so designated, the department of health and family services may issue licenses, collect licenses fees and make investigations or inspections of retailers, tobacco vending machine operators, tobacco vending machine premises and tobacco vending machines. If the department designates a local health department as its agent, the department or local health department may require no license for the same operations other than the license issued by the local health department.

AB1076,19,13 (2) A local health department that is designated as the department's agent under this section and that acts in cooperation with local law enforcement authorities shall, or a law enforcement officer shall, conduct on each licensee under s. 254.914 at least one random, unannounced investigation every 2 years, as authorized under sub. (1), to ensure compliance with s. 254.92, including the use of signs or notices as required under s. 254.92 (1) and the placement of tobacco vending machines as required under s. 254.92 (1) (c). The investigations shall be conducted as follows:

AB1076,19,16 (a) The local health department or law enforcement officer shall solicit a minor who has written permission from a parent to conduct undercover operations to purchase or attempt to purchase cigarettes or tobacco products.

AB1076,19,20 (b) The local health department may authorize the use of a minor, who has written permission from a parent and who is supervised by an adult, to assist in performance of governmental or nongovernmental research to monitor compliance with s. 254.92.

AB1076,19,22 (c) The local health department shall provide to local law enforcement authorities notice before conducting an investigation.

AB1076,19,24 (d) Local law enforcement authorities shall cooperate with a local health department that is conducting an investigation under this subsection.

AB1076,20,3 (2m) The local health department shall annually conduct on each licensee at least one random, unannounced inspection to ensure that each licensee is in compliance with s. 254.914.

AB1076,20,10 (3) A local health department that is designated as the department's agent under this section shall meet standards promulgated, by rule, by the department of health and family services. The department shall annually evaluate the licensing, investigation and inspection program of each local health department that is designated as the department's agent. If, at any time, a local health department that is designated as the department's agent fails to meet the standards, the department of health and family services may revoke the designation as agent.

AB1076,20,13 (4) The department shall provide education and training to agents designated under this section to ensure uniformity in the enforcement of this subchapter and rules promulgated under this subchapter.

AB1076,20,16 (5) Except as provided in sub. (6), a local health department that is designated as the department's agent under this section shall establish and collect the license fee for each applicant under s. 254.914 (3).

AB1076,20,21 (6) A local health department that is designated as the department's agent under this section may contract with the department of health and family services for the department of health and family services to collect fees and issue licenses. The department shall collect from the local health department the actual and reasonable cost of providing the services.

AB1076,21,2 (7) Unless sub. (6) or (8) applies, the department shall receive $10 of each license fee paid under s. 254.914 (3) for its costs related to setting standards under this subchapter and monitoring and evaluating the activities of, and providing education and training to, agent local health departments. Agent local health departments shall collect the fees and reimburse the department for the amount required under this subsection.

AB1076,21,9 (8) If, under this section, a local health department becomes an agent or its agent designation is revoked during a licensee's license year, the department of health and family services and the local health department shall divide any license fee paid by the licensee for that license year according to the proportions of the license year occurring before and after the local health department is designated as agent or the designation is revoked. No additional fee may be required during the license year due to the change in agent designation.

AB1076,21,14 (9) A local board of health may adopt regulations regarding the licensees and premises over which the department, or the local health department that is the department's designated agent under this section, has jurisdiction under s. 254.914, for which the requirements are in strict conformity with s. 254.914 or rules promulgated by the department of health and family services under s. 254.914.

AB1076,21,20 (10) This section does not limit the authority of the department to inspect establishments in jurisdictional areas of local health departments that are designated as the department's agents if the department inspects in response to an emergency, for the purpose of monitoring and evaluating the local health department's licensing, inspection and enforcement program or at the request of the local health department.

AB1076,21,23 (11) The department shall hold a hearing under ch. 227 if any interested person, in lieu of proceeding under ch. 68, appeals to the department alleging any of the following:

AB1076,22,3 (a) A license fee established by a local health department that is designated as the department's agent under this section exceeds the reasonable costs described under sub. (5).

AB1076,22,8 (b) The person issuing, refusing to issue, suspending or revoking a license or making an investigation or inspection of the appellant has a financial interest in a regulated cigarette and tobacco product retailer, tobacco vending machine operator, tobacco vending machine premises or tobacco vending machine which may interfere with his or her ability to properly take that action.

AB1076,22,11 (12) A county, town, village or city may enact an ordinance regulating the investigations authorized by this section only if the ordinance is at least as strict as this section.

AB1076, s. 57 Section 57. 254.92 (1) (c) 1. of the statutes is created to read:

AB1076,22,15 254.92 (1) (c) 1. The tobacco vending machine is in a barroom, as defined in s. 125.51 (3m) (a), located on premises described in a license issued under s. 125.26 or 125.51 (3).

AB1076, s. 58 Section 58. 254.92 (1) (c) 2. of the statutes is created to read:

AB1076,22,19 254.92 (1) (c) 2. The tobacco vending machine is located in a portion of a factory, business, office, club or other establishment to which members of the general public and minors do not have access.

AB1076, s. 59 Section 59. 254.92 (2) (c) and (d) of the statutes are created to read:

AB1076,22,24 254.92 (2) (c) A minor who has written permission from a parent may purchase or possess cigarettes or tobacco products for the sole purpose of assisting in the conduct of undercover operations for which the minor is solicited by a local health department or a law enforcement officer as required under s. 254.916 (2).

AB1076,23,5 (d) A minor who has written permission from a parent and who is under the supervision of an adult may purchase or possess cigarettes or tobacco products for the sole purpose of assisting in the performance of governmental or nongovernmental research, as authorized by the local health department under s. 254.916 (2), to monitor compliance with this section.

AB1076, s. 60 Section 60. 254.92 (3) (b) of the statutes is created to read:

AB1076,23,20 254.92 (3) (b) Failure by the retailer or the employe or agent of the retailer to prove the facts under par. (a) 1. to 3. is conclusive evidence that the retailer has violated sub. (1) (a). Failure by the manufacturer or the employe or agent of the manufacturer to prove the facts under par. (a) 1. to 3. is conclusive evidence that the manufacturer has violated sub. (1) (a). Failure by the distributor or the employe or agent of the distributor to prove the facts under par. (a) 1. to 3. is conclusive evidence that the distributor has violated sub. (1) (a). Failure by the jobber of the agent or employe of the jobber to prove the facts under par. (a) 1. to 3. is conclusive evidence that the jobber has violated sub. (1) (a). Failure by the subjobber or the agent or employe of the subjobber to prove the facts under par. (a) 1. to 3. is conclusive evidence that the subjobber has violated sub. (1) (a). Failure by the agent or employe of an independent contractor of a retailer, manufacturer, distributor, jobber or subjobber to prove the facts under par. (a) 1. to 3. is conclusive evidence that the independent contractor has violated sub. (1) (a).

AB1076, s. 61 Section 61. 254.922 of the statutes is created to read:

AB1076,24,3 254.922 Assessment of forfeitures; appeal; judicial review. (1) The department may directly assess forfeitures provided for under s. 254.914 (7) or 254.92 (4). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, the department shall send a notice of assessment to the alleged violator. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated and shall inform the alleged violator of the right to hearing under sub. (3).

AB1076,24,5 (2) A forfeiture may be assessed for each day of the period during which the violation occurred.

AB1076,24,10 (3) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under sub. (4), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

AB1076,24,22 (4) A person who is assessed a forfeiture under sub. (1) may contest the assessment of the forfeiture by sending, within 10 days after receipt of notice of a contested action, a written request for hearing under s. 227.44 to the division of hearings and appeals in the department of administration. The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.

AB1076,25,3 (5) (a) All administrative remedies shall be exhausted before an agency determination under this subchapter shall be subject to judicial review. Final decisions after hearing shall be subject to judicial review exclusively as provided in s. 227.52, except that any petition for review of department action under this subchapter shall be filed within 15 days after receipt of notice of the final agency determination.

AB1076,25,8 (b) The court may stay enforcement under s. 227.54 of the department's final decision if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and will suffer irreparable harm if a stay is not granted, and that the party will meet the requirements of this subchapter and the rules promulgated under this subchapter during such stay.

AB1076,25,11 (c) The attorney general may delegate to the department the authority to represent the state in any action brought to challenge department decisions prior to exhaustion of administrative remedies and final disposition by the department.

AB1076,25,15 (6) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subchapter if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.

AB1076, s. 62 Section 62. 778.25 (1) (a) 4. of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

AB1076,25,19 778.25 (1) (a) 4. Under s. 48.983 254.92 (2) brought against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

AB1076, s. 63 Section 63. Initial applicability; health and social services.

AB1076,25,24 (1) Cigarette and tobacco products retailer license. The treatment of section 134.65 (title), (1), (2) (a) and (b), (3), (4) and (5) of the statutes first applies to new or renewed licenses issued under section 254.914 of the statutes, as affected by this act, on July 1, 1996.

AB1076,26,3 (2) Penalties for certain violations. The treatment of sections 48.983 (2), 134.65 (5), 134.66 (4) and (5), 254.916 (12) and 254.922 of the statutes first applies to violations committed on the effective date of this subsection.

AB1076, s. 64 Section 64. Effective date.

AB1076,26,6 (1) This act takes effect on July 1, 1996, or on the day after publication, whichever is later.

AB1076,26,7 (End)